1. This is an appeal by the petitioner in the lower court, who was the assignee from the 39th creditor in certain proceedings under the Debt Conciliation Act, and who filed an execution petition for sale of properties. The petition was dismissed upon the main ground that it was barred by limitation. The actual question involved turns upon the interpretation and application of Section 14 (2) of the Limitation Act to the facts of this case. The broad facts which are required for our present purpose are as follows :
During the pendency of certain proceedings under the Debt Conciliation Act, an agreement was reached with regard to a sum of money payable to the appellant's predecessor-in-interest, the creditor upon a charge of certain properties. This assignment was registered in accordance with Section 14(2) of the Debt Conciliation Act, and the petitioner in the lower court (appellant) is an assignee from the creditor, the assignment in his favour having been recognised by the Sub-Court, Kumbakonam. Subsequent to this recognition, the appellant instituted several petitions for transmission of the decree to the court of the District Munsif of Melur, within whose jurisdiction the charged properties were situate. The last order of the Sub-Court, Kumbaskonam, ordering transmission of the decree to the Sub-Court, Madurai, was on 12-12-1947 in E.A. No. 268 of 1947.
2. Subsequently, the appellant filed R.P. No. 238 of 1948 in the Court below for sale of the charged properties. This petition was dismissed, and the matter was taken up in appeal to the District Court. We are not now concerned with the details of further proceedings at that stage. It is sufficient to note that the matter came up to this court before Mack J. in A. A. O. No. 415 of 1931. The decision of Mack J. and the grounds upon which the learned Judge based that decision, will be found stated and discussed in the Bench decision of this court in Ramasami Aiyar v. Krishna Aiyar, : AIR1957Mad431 , which was a Letters Patent Appeal from the judgment of Mack J. The learned Chief Justice (delivering the judgment on behalf of the Bench) held that the provisions of the Limitation Act could not be extended by analogy or principle to include the case of an agreement before the Debt Conciliation Board registered under Section 14 (2) of the Debt Conciliation Act.
Hence Article 182 Clause (2) would not apply, and the period of limitation of six years was not available to the party; the normal period of three years will alone be operative. But upon the second ground of the decision of Mack J., the learned Judges agreed with him that this was a case to which Section 14(2) of the Limitation Act would prima facie apply, though the Sub Court of Kumbakonam where the present appellant had been prosecuting his applications for transmission of the decree, was not the proper forum hut a misconceived one. However, as Section 14 (2) further required that the party seeking to avail himself of this exemption should prosecute the execution proceedings in good faith, and good faith was not admitted, the learned Judges remitted the execution petition to the court of the Subordinate Judge for further disposal.
3. The learned Subordinate Judge has now held (1) that the petitioner prosecuted the proceedings in good faith in the Kumbakonam Sub Court, and (2) that even, so, the execution petition was clearly time barred, even upon the application of Section 14(2) of the Limitation Act in conjunction with the normal period of limitation of three years under Article 182. That is because, upon the relevant dates, the total period occupied by the four petitions in the Sub Court, Kumbakonam, comes to 158 days, and adding this to the normal limitation of three years, the execution petition is still time-barred by quite an appreciable interval or period. The execution petition would be in time only if the entire period during which successive petitions were instituted by the petitioner in the Sub Court, Kumbakonam, is to be taken into account in excluding this period for the purpose of limitation, and not merely the actual days spent in the prosecution of these several proceedings.
4. The learned counsel for the respondents (Sri Kuppuswami Iyer) would attempt to support the decision of the lower court also upon the question of bona fides. According to him, the lower court is in error upon this point, and the appellant had no bona fides, in launching these several proceedings in a court lacking jurisdiction. However this might be, it is really not necessary for me to proceed into a discussion of this aspect for it seems to me that this appeal can very adequately be disposed of upon the matter of limitation, regarding which the authorities are perfectly clear and explicit.
5. Even apart from authorities, and if the matter were res integra the language of Section 14 (2) appears to me to be plain and unambiguous. The language used is
'time duing which the applicant has been prosecuting with due diligence another civil proceeding ........ shall be excluded, where the proceeding is prosecuted in good faith in a court which, from defect of jurisdiction, or other cause of a like nature is unable to entertain it.'
Apart from these specific words, it is interesting to note that explanation 2 to Section 14 (2) throws some further light upon the words used, in the sense that a plaintiff or applicant resisting the appeal is also deemed to be a person prosecuting the proceeding.
It is very clear that the legislature intended to exempt a certain period covered by bona fide litigious activity. Upon the words used it is impossible to sustain the interpretation that the period forming the intervals between these successive petitions, when the party merely stood by allowing limitation to run, should also be considered as period of 'prosecuting' proceedings within the ambit of the rule.
6. The point is actually concluded by authority. In the Privy Council decision in Maqbul Ahmad v. Onkar Pratap Narain Singh , the Privy Council has applied Section 14 (2) to certain facts, and, as observed by the Judicial Committee, 'the days excluded from operating by way of limitation have to be added to what is primarily the prescribed; period.' It is clear that, in that case, the court took into account only the actual days when proceedings were pending in court and were being prosecuted in that court. My attention has also been drawn to an unreported judgment of Jackson J. in Parankusam Jagannadham v. Gada Govinda Rao Pantulu, C.M.S.A. No. 76 of 1923 in which the learned Judge also took the same view, but upon a somewhat different ground, that each of such distinct applications in a misconceived forum ought to be considered as a separate entity, instead of taking the entire period covered by such proceedings as a continuous period of activity for the purposes of Section 14(2). Though this unreported decision is not referred to in his judgment, Govinda Menon J. took the very same view in Akkal Nayakar v. Kumaraswami Reddiar : (1949)1MLJ432 . It is in this case that the present argument seems to have been put before the court in a form/ more or less identical. The learned Judge had no hesitation in negativing it, and he observed :
'It seems to me that each of these three applications were distinct and separate and ought to be treated as such and the later ones cannot be treated as a continuation of the earlier applications.'
This involves the logical consequence that we can only exclude for purposes of limitation, the actual days relating to the pendency of each of the distinct applications filed by the assignee. So excluded, it is beyond doubt or dispute that the period comes to only 158 days to be added to the normal period of limitation, and that this application is hopelessly time barred judged by this data.
7. This civil miscellaneous appeal therefore fails and is dismissed. In the circumstances, (the lower court also did not award costs) I direct that the parties should bear their own costs.